The Courts Drag Parking Back into the California Environmental Quality Act - BB&K's Sarah Owsowitz and Stephanie Straka Explore What It Means for California Cities and Other Public Entities

by Best Best & Krieger LLP
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It is a truth, universally acknowledged, that a Californian in possession of a car must be in want of a parking space. And, of course, this space should be free, just steps from your intended destination and available 24 hours a day. But the harsh reality is that, in just about every densely populated area of California, the hunt for the perfect parking space (or any parking space!) is a frustrating and often highly expensive daily activity. As a result, when cities, counties and other public agencies consider proposals for new development in an urbanized area, they are commonly besieged with panicked cries of “But where will these new residents/customers/workers park? Where will I, my customers, or my employees park? Parking!!!”

Parking is not, by any stretch of the imagination, a new issue in California. But, in 2002, public agencies won a small victory that allowed them, if they choose, to keep parking battles mostly separate from one of the other stickiest widgets in California land use – the California Environmental Quality Act, or CEQA as it is widely known. In San Franciscans Upholding the Downtown Plan v. City and County of San Francisco, a state appellate court considered a challenge to an environmental impact report’s discussion of the parking impacts of a massive redevelopment project in downtown San Francisco. The project proposed to restore the historic Emporium Building for use as a Bloomingdale’s department store as well as other retail and restaurant uses. There was no question that the project would greatly increase the demand for parking in the area, but the project did not include any new parking. The project’s opponents challenged the city’s decision not to identify the project’s parking deficit as an environmental impact. The First District Court of Appeal sided with the city, finding that its environmental analysis was adequate as the “social inconvenience of having to hunt for scarce parking spaces is not an environmental impact; the secondary effect of scarce parking on traffic and air quality is.” Thus, the court held that the lack of parking does not, on its own, need to be treated as a significant impact to the environment.

Since then, San Francisco and other cities in California have been following the court’s lead, finding in their CEQA documents that “the social inconvenience of parking deficits, such as having to hunt for scarce parking spaces, is not an environmental impact.” Thus, their consideration of parking issues has been limited to questions about whether there might be secondary environmental impacts from a lack of parking, such as increased traffic congestion at intersections and air quality impacts caused by that congestion. In 2010, there was another step in the right direction: The Governor’s Office of Planning and Research, the entity charged with drafting guidelines to help agencies implement CEQA, deleted questions about whether proposed projects would result in inadequate parking capacity from the CEQA Guidelines.

But apparently nothing good in CEQA lasts forever. Another city haunted by parking problems, San Diego, is the subject of a new court case that drags the issue of parking back into the CEQA arena. In Taxpayers for Accountable School Bond Spending v San Diego Unified School District, a state appellate court considered the environmental review conducted by a school district for the installation of stadium lighting at a high school athletic field, lights which would allow for the playing of night football games. Neighbors complained that the high school’s parking was inadequate and that attendees to night games might park in their neighborhood, thus keeping residents from finding parking when they came home from work. On this basis, the neighbors argued, the school district should have prepared a lengthy environmental impact report, rather than the shorter, faster environmental review document known as a “negative declaration.” The Fourth District Court of Appeal, in its ruling issued this past March, sided with the neighbors, finding that the potential lack of available parking spaces during night games, by itself, could be a significant impact on the environment. It rejected the reasoning in San Franciscans Upholding the Downtown Plan and held that CEQA requires environmental review not just of the potential secondary effects associated with searching for parking, such as increased exhaust emissions from idling cars, but also of the “direct effects” of being unable to find a space in a parking lot, namely, parking somewhere else. The court stated: “cars and other vehicles are physical objects that occupy space when driven and when parked” and thus “naturally must have some impact on the physical environment,” even if the impact is only “temporary (e.g. only so long as the vehicle remains parked).” The court did not suggest what this temporary direct impact to the environment might be, but concluded that the neighbors’ concerns about finding a parking space when they came home from work constituted evidence that “the Project may have a significant impact on parking and thus the environment.”

Where does this new ruling leave cities, counties and other public agencies? The conservative approach will be to go back to the days when every CEQA document considered whether there were sufficient parking spaces to serve a proposed project. (Although what does sufficient parking even mean in dense areas where the existing zoning may not call for new developments to provide parking at all?) Arguably public agencies will be forced to call a lack of sufficient parking a significant impact to the environment. This impact, it would seem, can only be addressed (“mitigated” to use CEQA lingo) by providing more parking or making the project in question smaller. Does this mean that adding parking is now some sort of benefit to the environment? What about so-called “infill projects,” those projects most likely to be located on small parcels of land in dense urban areas where parking is already hard to find? Will they have to reduce the square footage of retail or office spaces or the number of housing units they propose in order to add parking spaces? And, if they cannot provide sufficient parking, will public agencies be forced to prepare otherwise unnecessary environmental impact reports (the only type of environmental review document that can be prepared for projects with unmitigated impacts)?

Attorneys for the San Diego Unified School District have petitioned the California Supreme Court to review this case, and we should know the results of their request by the end of the summer. But the Supreme Court grants review to only a tiny percentage of the cases and even if the court accepts this one, it could be a while before a hearing is scheduled and a ruling is issued. So, at the end of the day, it looks likely that parking will be crashing the CEQA party once again.

* This article was originally published in PublicCEO.com, on June 18, 2013. Republished with permission.

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